GENEVA  AWARD: 


What  shall  Congress  Do  with  the  Balance  ? 


REA.SONS  WHY 

It  shall  be  distributed  to  the  Owners  of  the  so-called 
“Outside,”  or  “Exculpated”  Cruisers,  their 
Officers  and  Crews;  and  to  the  Payers  of  “In¬ 
creased”  Marine  Insurance,  or  so-called  “War 
Premiums,”  and  NOT  to  Marine;  or  Fire  and 
Marine  Insurance  Companies. 


ARGUMENT  THEREFOR 

TO  THE 

JUDICIARY  COMMITTEE  OF  THE  SENATE  OF  THE  UNITED  STATES. 

WASHINGTON,  D.  C. 


By  J.  F.  MANNING,  Esq., 

Of  Worcester,  Mass., 

Counsel  for  certain  Claimants  under  the  Award. 


MARCH,  187(5. 


Printed  and  Bound  at 


THE  NATIONAL  REPUBLICAN  PRINTING  HOUSE , 
WASHINGTON,  D.  C. 


1  1  3.  %% 


CO 


4 


Mr.  Chairman  and  Gentlemen  of  the  Committee 


^  . 


Two  years  ago  last  September  Great  Britain  paid  to  the 
Government  of  the  United  States  the  amount  awarded  to  it 
by  the  “  Geneva  Tribunal,”  sitting  in  pursuance  of  the  inter¬ 
national  agreement,  known  as  the  Treaty  of  Washington, 
bearing  date  the  8th  of  May,  1871.  The  amount  of  the  pay¬ 
ment  was  fifteen  and  one-half  millions  of  dollars  in  current 
gold  coin.  The  Government  soon  borrowed  it  upon  its  bonds 
as  security,  stipulating  to  pay  five  per  cent,  interest  semi-an¬ 
nually,  and  consequently  the  interest  to  be  re-invested  every 
six  months. 

By  Act  of  Congress  of  June  28,  1874,  the  Court  of  Com¬ 
missioners  of  Alabama  Claims,  composed  of  five  judges'  was 
created  to  proceed  with  the  distribution  of  the  award  under 
the  terms  imposed  by  the  Act,  and  to  decree  interest  on  its 
judgments  at  the  rate  of  four  per  cent,  per  annum  since  the 


losses  occurred,  up  to  the  time  of  the  payment  of  the  judg- 
t  ments.  The  Court  has  proceeded  with  marked,  even  pre-emi- 
i  ment  ability  and  promptness,  in  the  performance  of  its  un- 
1  c  precedented  and  arduous  duties,  and  has  nearly  completed  its 

JJ  labors  under  the  act,  and  made  awards  as  empowered  for 
losses  by  the  insurgent  cruisers  Alabama,  Florida  and  their 
“  tenders,”  and  the  Shenandoah  after  she  sailed  from  Mel- 
M  bourne,  Australia,  February  18,  1865.  The  Court  has  adju¬ 
dicated  upon  all  the  cases  before  it,  amounting  to  thirteen 
<4  hundred  and  eighty-five,  except  one  hundred  and  seven  now 

r  undecided,  and  has  ordered  the  entry  of  judgments  amount¬ 
ing  to  a  trifle  over  eight  millions  of  dollars,  including  prin- 
^  cipal-and  the  four  per  cent,  interest.  The  Act  of  June  23, 
""  1874,  prescribed  that  the  Court  should  decree  payment  in 


f  452-18 


4 


“  tlie  currency  of  the  United  States.”  This,  under  the  “  Le¬ 
gal  Tender  Act  ”  of  1862,  is  construed  to  mean  the  paper 
money  of  the  United  States,  and  not  its  gold  coin.  Conse¬ 
quently  gold  being  at  a  premium  over  the  paper  currency  an 
amount  has  been  added  (as  it  were)  to  the  award,  equivalent 
to  the  gold  premium  at  date  of  the  payment  of  the  judg¬ 
ments  when  the  investment  bonds  are  converted  into  cur¬ 
rency.  The  present  gold  premium  adds  about  fifteen  per 
cent,  to  the  Geneva  Award  fund.  This  necessarily  inures 
to  the  benefit  of  the  claimants-  who  may  hereafter  be  en¬ 
titled  by  Congress  to  share  in  its  distribution.  The  present 
sum  total  of  the  fund  in  paper  money  is  about  twenty  mil¬ 
lions  of  dollars,  including  the  current  premium  and  accumu¬ 
lated  interest.  Deducting  therefrom  the  aggregate  sums 
awarded  by  the  Court — eight  millions  in  “  round  numbers  ” — 
and  the  unappropriated  balance  approximates  twelve  mil¬ 
lions  of  dollars..  Following  this  recital  of  the  present  condi¬ 
tion  of  the  fund,  we  subjoin 

“REASONS” 


Why  this  unappropriated  balance  should  be  paid  to  the  own¬ 
ers  of  about  sixty  vessels  (mostly  small  ones)  their  cargoes 
and  freight-money,  wages  of  officers  and  crews,  and  the  pay¬ 
ers  of  the  so-called  war  premiums. 

The  first  class  of  losses  in  order  of  merit  which  should  be 
provided  for,  is  that  known  as  the  “  exculpated  ”  or  outside 
“cruisers;  “outside”  because  excluded  from  the  right  of 
proofs  in  the  present  Court.  They  differ  in  no  aspect  from 
those  now  in  process  of  payment  by  the  Treasury  Depart¬ 
ment  under  the  seal  of  the  Court.  They  were  losses  by  in¬ 
surgent,  or  Confederate  cruisers  on  the  high  seas  during  the 
rebellion,  of  hulls  and  cargoes  and  freight-money  earned  by 
actual  transportation  of  merchandise,  or  legally  due  when 
captured  and  destroyed  by  the  law  of  admiralty,  because 
“  under  charter  ”  or  contract  to  pay  when  cargo  was  delivered. 
Being  prevented  from  delivery  by  Confederate  interception 


5 


and  destruction,  the  present  Court  awards  them  the  money 
agreed  for  by  the  stipulations  of  the  charter  treaty. 

If  distinctions  are  drawn,  and  meritorious  classification  of 
claims  in  order  of  hearing,  and  payment  established,  it  certainly 
seems  proper  and  entirely  just  that  those  persons  should  he 
first  paid  who  risked  their  property,  perchance  u  their  all,”  in 
commerce  carried  on  in  American  bottoms,  under  the  ex¬ 
pected  and  promised  protection  of  the  American  flag,  and 
burned  or  sunk  because  found  floating  under  the  Stars  and 
Stripes. 

If  the  cross  of  St.  George  or  the  tri-color  of  France,  or  the 
insignia  of  any  other  nationality  had  held  over  it  its  aegis  of 
protection,  then  the  enemies  of  the  Union,  in  the  guise  of 
pirates,  would  have  passed  them  by  with  a  salute  of  recog¬ 
nition  instead  of  applying  the  torch  of  destruction.  In¬ 
tensely  and  unswervingly  patriotic  as  these  claimants  were 
they  preferred  a  sacrifice  of  their  commercial  interest  (and  in 
many  cases *as  the  sequel  shows,  bankruptcy)  rather  than  to 
them  ignoble  and  unpatriotic  device  of  protection — “  white¬ 
washing — hoisting  to  the  masthead  the  colors  of  a  country 
not  their  own,  to  which  they  owed  no  allegiance ;  instead  of 
the  flag  of  their  native  land,  to  which  they  did  owe  allegi¬ 
ance,  and  from  which  in  return  they  expected  and  were 
guaranteed  protection  and  immunity  from  losses.  But  for 
this  courageous  and  self-sacrificing  patriotism,  this  absolute 
fidelity  of  citizenship  they  might  have  sailed  the  seas  in 
peace,  prosperity  and  profit. 

How  gratifying  to-day  the  retrospect  to  them  and  their 
descendants ;  how  creditable  to  the  American  name  that  they 
proferred  perils  and  endured  severe  losses,  as  compared  with 
the  avarice,  cowardice,  the  civil  and  commercial  treachery 
of  their  competitors  who  transferred  their  vessels  and  cargoes 
to  a  flag  that  these  same  Confederate  cruisers  floated  as  a  de¬ 
coy  to  capture  and  the  torch !  1 

Such,  in  brief,  is  their  record  ;  on  a  history  like  that  do 
the  persons  we  are  honored  to  represent,  base  their  appeal  for 
compensation  ;  for  the  simplest,  most  obvious  justice. 


6 


For  twelve,  thirteen,  fourteen  years,  (long  and  trying),  have 
they  waited  at  the  bar  of  nations  and  the  tribunals  of  the 
country  they  honored  and  helped  to  save,  for  that  partial 
indemnity  which  money  alone  can  give ;  and  every  impartial 
and  unbiassed  observer  says  is  rightfully  theirs. 

A  careful  computation  of  the  entire  losses  of  this  class 
shows  the  aggregate  to  he  about  one  million  dollars,  (paper,) 
and  at  the  present  four  per  cent,  interest  makes  the  total 
about  one  million  five  hundred  thousand  dollars. 

This  is  probably  less  than  one-half  the  amount  added  to 
the  fund  from  gold  premium  and  accumulated  income.  We 
cannot  for  a  moment  believe  that  their  appeal  will  meet  any 
other  than  a  prompt,  and  generous  response.  The  Govern¬ 
ment  of  Great  Britain  has  publicly  and  formally  expressed 
its  sincere  regrets  and  apologies  that  any  of  its  subjects 
should  have  so  far  violated  the  sacred  obligations  of  neu¬ 
trality  as  to  participate  in  the  depredations  and  piratical 
gains,  and  has  nobly  and  ungrudginly  paid  the  amount  that 
the  chosen  tribunal  said  was  due.  This  indemnity  has  been 
in  the  United  States  Treasury  for  nearly  three  years.  Many 
of  the  men  whose  patriotism  was  the  immediate  occasion  of 
their  losses  have  gone  to  that  u  bourne  whence  no  traveller  re¬ 
turns/’  Their  descendants  and  those  who  are  still  spared  to 
recite  their  sufferings,  are  mindful  that  “  delay  is  often  the 
worst  injustice,”  and  are  anxious  that  the  history  of  the 
English  spoliation  claims  be  not  that  of  the  French  spolia¬ 
tion  claims.  They  do  not  ask  that  the  American  Govern¬ 
ment  pay  them  from  its  own  funds,  but  from  those  that  it 
holds  as  trustee  for  their  specific  and  intended  use,  equally 
with  all  others  in  the  same  situation. 

The  Government  is  trustee  “  without  bonds,”  excepting 
the  international  obligation  of  honor  and  fidelity  to  its  own 
citizens  from  whom  it  exacts  allegiance  and  taxes,  and  in  re¬ 
turn  promises  protection  in  all  cases,  and  insures  it  where  it 
can.  From  stress  of  circumstances  it  was  unable  to  render 
it  on  the  seas  during  the  rebellion,  and  in  due  time  in  repa¬ 
ration  for  the  losses  consequent  upon  the  inability  to  protect. 


demanded,  secured  and  received  redress  from  the  neutral 
Power  responsible  for  the  depredations.  Honorably  allowed 
and  punctually  paid  by  the  defendant  nation,  it  is  the  obvi¬ 
ous  and  bounden  duty  of  the  recipient  to  as  honorably  and 
punctually  award  and  distribute  in  detail  the  munificent  sum 
it  received  and  holds  “  in  gross.”  Only  one  limitation  is  im¬ 
posed  by  the  trust,  and  that  is  that  the  distribution  be  made 
to  those  who  sustained  marine  losses  at  the  hands  of  the 
officers  and  crews  of  the  Confederate  cruisers.  Common 
parlance,  and  even  some  arguments,  have  used  the  descrip¬ 
tive  terms  of  “  direct  ”  and  “  indirect  ”  losses.  Ho  such  lan¬ 
guage  is  found  in  the  Treaty,  or  in  the  Award.  It  was  a 
misnomer  introduced  by  the  English  counsel  at  Geneva,  evi¬ 
dently  intended  as  a  part  of  the  u  special  pleading  ”  or  soph¬ 
istry  that  sought  to  evade  responsibility  of  the  client  nation 
they  so  ably  represented.  Only  two  classes  of  losses  were  pre¬ 
sented  to  the  Tribunal,  to  wit:  National  and  private.  The 
one  covering  those  of  the  United  States  in  their  political 
capacity ;  the  other  those  of  individuals  no  matter  what  the 
form  of  that  loss  might  have  been,  whether  that  of  a  hull  or 
a  cargo,  or  the  payment  of  a  war  premium  to  underwriters 
as  a  guarantee  against  capture  and  destruction.  A  loss  is  a 
loss;  no  more  no  less.  Distinctions  here  are  distinctions 
without  a  difference.  Nothing  can  be  plainer.  He  who  paid 
twenty  thousand  dollars  for  a  hull  or  cargo  burned  or  sunk 
lost  just  the  same  as  he  who  paid  the  same  sum  to  an  insur¬ 
ance  company  to  protect  him  against  piratical  depredations, 
or  war  perils.  Admiralty  law,  the  law  of  insurance  whether 
fire  or  marine,  recognizes  but  one  distinction  here,  and  that 
is  a  “  partial  ”  or  a  “  total  ”  loss.  In  the  former  it  discounts 
the  salvage ;  in  the  latter  as  nothing  is  saved,  it  discounts  no 
salvage,  but  pays  in  full.  This  is  the  controlling  element 
determining  the  amount  due  in  all  cases.  But  this  distinc¬ 
tion  has  no  place  here,  except  it  be  in  those  instances  where 
the  underwriter  paid  the  assured  a  scrip  or  other  dividend, 
which  the  records  of  the  companies  and  the  receipts  of  the 
payees  can  easily  establish  under  the  modes  of  proof  and 


8 


rules  of  evidence  whicli  the  Court  may  lay  down  ;  and  the 
common  law  has  for  so  long  made  explicit  and  positive.  It 
is  a  subject  easily  presented  and  as  readily  adjusted — a  ques¬ 
tion  of  figures  devoid  of  complications  and  free  from  errors. 
Ho  mystery,  no  duplicity;  hut  the  absolute  unerring  certainty 
of  mathematics.  Some  pretence  has  been  made  of  the  doc¬ 
trine  of  subrogation  as  a  technicality,  or  a  principle  that 
should  enter  into  the  consideration  and  have  weight  in  the 
settlement.  But  how  can  it?  We  have  yet  to  see  a  satis¬ 
factory  answer.  On  the  contrary,  it  is  apparent  how  it 
cannot  !  Then,  the  ordinary  marine  rate  of  insurance  against 
sea  perils  ranged  from  one-half  of  one  per  cent,  to  two  per 
cent.,  depending  on  the  kind  of  cargo  and  the  intended  or 
current  voyage.  The  war  rate  against  war  perils  was  from 
(usually)  four  to  fifteen  per  cent.  In  a  few  cases  it  was  from 
two  to  thirty  per  cent.,  according  to  the  competition  of  the 
companies ;  and  whether  the  assured  property  was  in  the  track 
of  the  cruisers  or  not. 

The  war  premium  was  always  in  addition  to  the  marine 
premium,  and  commonly  entirely  separate  from  it,  sometimes 
a  separate  policy. 

In  every  case  the  Court,  by  the  aid  of  parties  and  counsel, 
can  easily  ascertain  the  amounts  paid  for  each  kind  of  insur¬ 
ance.  Subrogation  is  simply  the  sucession  of  the  insurer  to 
the  rights  of  the  assured  to  any  property  that  may  he  saved 
from  the  wreck,  and  the  rate  is  always  governed  and  deter¬ 
mined  in  ordinary  marine  insurance  against  sea  perils  with 
reference  to  salvage.  In  a  large  majority  of  disasters  some¬ 
thing  is  saved  which  always  goes  to  the  underwriter,  increases 
his  income  and  resources,  and  enables  him  to  insure  at  lower 
rates.  But  in  war  insurance  a  rate  was  made  without  refer¬ 
ence  to  salvage;  because  as  a  matter  of  fact,  in  no  instance 
was  anything  saved  beyond  apparel  upon  the  person  of  the 
officers  and  crew.  Usually  the  captured  property  was  burned ; 
in  a /ceases,  saved. 

The  companies,  officers,  and  agents  knew  this,  and  charged 
and  received  a  premium  in  'proportion.  They  never  expected 


9 


to  get  any  return  compensation,  and  we  fail  to  see  why  injus¬ 
tice  or  equity ,  they  ever  should ! ! 

The  Government  has  always  refused  (and  justly)  to  pay 
these  claims,  which  have  frequently  been  presented  and  re¬ 
jected,  because  they  were  into  the  business  as  a  business)  (not 
obliged  to,)  and  were  paid  for  the  risk. 

In  support  of  this  is  the  well-considered  judgment  of  Con¬ 
gress,  as  proved  by  the  following  letter: 

“  Commonwealth  of  Massachusetts, 

“  Executive  Department, 

“  Boston,  Jan.  24,  1873. 

“Dear  Sir:  While  I  was  on  the  Committee  of  Claims 
for  six  years,  several  cases  of  insurance  companies  were  pre¬ 
sented  where  property  had  been  lost  or  destroyed,  on  which 
they  had  paid  the  insurance.  The  Committee  always  dis¬ 
missed  the  claim,  on  the  ground  that  they  were  paid  for  the 
risk,  and  could  not  ask  the  Government  to  hold  them  harm¬ 
less. 

“  Yours  truly, 

“  W.  B.  W ASHBURY. 

“  To  Geo.  0.  Shattuck,  Esq.” 

Having  been  paid  for  it  once ,  why  should  Congress  tax  the 
people,  or  impose  custom  duties  to  pay  them  again  ?  One 
compensation  for  the  same  thing,  or  the  same  service  is  all 
that  is  usually  paid.  Why  make  wealthy  corporations  an 
exception  ?  Is  the  Government  under  any  obligation  ?  Have 
they  given,  or  promised  to  give,  any  “  quid  pro  quo  f  ”  What 
Board  of  Underwriters,  what  company’s  officers  thirteen  or 
fourteen  years  ago  ever  looked  forward,  and,  in  prophetic  vis- 
ian,  saw  British  gold  in  the  vaults  of  the  Treasury  of  the 
United  States  to  pay  them  twice  over?  Something  has  been 
said  about  the  insurance  companies  having  influenced  the 
Geneva  decision.  Are  they  willing  to  say  that  they  employed 
assistant  or  special  counsel  to  press  their  claims  before  the 
Tribunal?  Did  not  the  able  trio  of  counsellors  act  for  the 


10 


Government  ?  Were  they  not  paid  by  the  Government  that 
sent  them  on  their  high,  honorable  and  successful  mission  ? 
Will  anyone  presume  even  to  suggest  that  there  was  a  “  third 
house  ”  there  ;  that  “  lobbying  ”  surrounded  that — the  most 
a  ugust  and  impartial  of  Courts  ? 

It  has  passed  into  history  as  one  of  the  most  successful  pro¬ 
fessional  achievements,  and  that  no  persons  endowed  with 
judicial  powers  ever  held  the  scales  of  justice  more  evenly ! 
If  a  judgment  ever  personified  the  mythical  or  pictorial 
goddess  that  presides  over  judicial  forums,  it  was  the  Geneva 
Award. 

The  award  makes  no  mention  of  any  specific  sum  allotted 
to  insurance  companies,  nor  to  any  special  class  of  claims 
there  considered.  It  is  awarded  in  satisfaction  of  all  the 
claims  presented  or  referred  to  the  consideration  of  the  Tri¬ 
bunal.  The  agent  of  the  Government  could  not  withdraw 
from  the  consideration  of  the  Arbitrators  the  claims  for  war 
premiums  if  he  would.  Those  were  private  claims — the 
property  of  indivinuals — and  not  the  property  of  the  Gov¬ 
ernment.  If  the  agent  had  formally  withdrawn  them  it 
could  not  annihilate  the  title  ef  the  payers  of  those  premiums, 
or  extinguish  their  property  therein.  The  owner's  never  sur¬ 
rendered  ownership  in  them,  nor  conld  they  be  divested  of 
their  titles.  Governments  do  not  thus  confiscate  the  prop¬ 
erty  of  law-abiding,  loyal,  tax-paying  citizens.  Handing 
the  amounts  to  the  Government  agent  to  present  to  the  board 
never  carried  a  delegated  or  implied  power  to  surrender 
without  adequate  compensation.  The  Government  did  what 
it  saw  fit  with  its  own  claims.  With  these  we  have  nothing 
to  do.  But  we  submit  that  the  Government  received  far 
greater  compensation  than  any  individual  now  asks,  in  this, 
viz  :  that  it  gained  for  the  future  the  establishment  of  certain 
principles  and  rules  of  international  law  that  are  henceforth 
to  govern  the  relations  and  conduct  of  neutrals  towards  bel¬ 
ligerents  in  times  of  war.  Such  indemnity  is  vastly  superior 
to  money. 

The  Government  was  more  than  satisfied  with  the  recog- 


11 


nition  of  those  rules  for  which  it  had  been  so  long  contend¬ 
ing,  and  the  people  have  cordially  approved  the  triumph  ; 
and  the  consequent  advance  of  public  law.  It  might  have 
been  the  misfortune  that  the  private  elaims  were  more  or 
less  intermingled  with  the  national  claims ;  but  that  does  not 
lessen  the  rights  which  their  owners  possess,  and  of  which 
no  Government  or  Tribunal  can,  or  desires  to  deprive  them. 
Governments  exist  to  protect,  not  to  deprive  citizens  of  the 
rights  of  property.  Government  filed  claims  for  the  cost  of 
pursuit  of  Confederate  cruisers,  and  the  Tribunal  disallowed 
them  because  they  are  “  not  distinguishable  from,  the  general  ex¬ 
penses  of  wary  (See  Cushing’s  Treaty  of  Washington,  p. 
153,  et  seq.) 

The  Government  in  its  instructions  to  the  agent  at  Ge¬ 
neva  said :  “  You  will  be  careful  not  to  commit  the  Govern¬ 
ment  as  to  the  disposition  of  what  may  be  awarded,”  and 
again :  “  If  the  value  of  the  property  captured  or  destroyed 
be  recovered  in  the  name  of  the  Government,  the  distribu¬ 
tion  of  the  amount  recovered  will  be  made  by  this  Govern¬ 
ment  without  committal,  as  to  the  mode  of  distribution.” 
The  language  of  the  award  is:  “  The  Tribunal  awards  to  the 
United  States  the  sum  of  fifteen  millions  five  hundred  thou¬ 
sand  dollars  in  gold  ”  “  for  the  satisfaction  of  all  the  claims 
referred  to  the  consideration  of  the  Tribunal.”  We  quote 
verbatim.  Clearly  this  is  an  award  to  the  G-overnment ,  and  as 
clear  that  it  includes  in  “  all  claims  referred  to  the  considera¬ 
tion  of  the  Tribunal,”  those  of  “  outside  ”  cruisers  and 
war  premiums  because  they  were  there  filed  and  considered.” 

The  amount  of  war  premiums  there  filed  and  considered 
was  a  trifle  over  six  millions  of  dollars.  This  included  the 
gross  sums  paid,  and  generally  did  not  allow  for  subsequent 
“  scrip  f  or  other  dividends  which  as  hereinbefore  explained, 
the  Court  would  deduct  by  giving  it  power  to  allow  and 
award  only  net  loss  as  in  the 'cases  already  in  process  of  pay¬ 
ment  by  the  Treasury  officers.  These  payers  of  war  pre¬ 
miums  did  not  do  so  from  choice ,  as  in  the  case  of  the  com¬ 
panies  who  received,  them.  But  they  were  paid  by  necessity — 


12 


the  most  despotic  mercantile  compulsion.  Either  pay  them, 
or  they  could  not  buy  goods  in  foreign  markets  on  credit, 
nor  export  in  American  bottoms  in  which  freights  were  lowest. 
The  owners  of  vessels  were  compelled  to  pay  them  on  ac¬ 
count  of  the  ruinous  competition  that  ensued  from  the  fre¬ 
quent  unpatriotic  and  dishonorable  transfers  to  foreign  flags. 
It  was  a  mercantile  competition  between  the  friends  and  sup¬ 
porters  of  the  Government  in  its  years  of  severest  trial,  and 
the  grasping  avarice  of  disloyalty,  or  sympathy  with  treason. 
At  this  time  it  cannot  be  possible  that  the  lapse  of  years  and 
the  unyielding  avarice  of  corporations,  will  so  blunt  or  be¬ 
cloud  the  sense  of  justice  and  duty  as  to  exclude  these  suf¬ 
ferers  from  sharing  in  the  trust-fund  held  under  the  most 
sacred  obligations  for  an  even-handed  distribution. 

We  gladly  quote  from  a  recent  opinion  of  Mr.  Justice  Ray¬ 
nor,  of  the  Court  of  Commissioners  of  Alabama  Claims.  In 
Ilubbell  vs.  the  United  States,  he  says,  referring  to  the  pro¬ 
ceedings  of  the  Geneva  Tribunal :  “  Nothing  can  there  be 
found  to  limit  or  control  good  faith  on  the  part  of  our  Gov¬ 
ernment  in  making  such  allowance  to  claimants  before  us  as 
in  their  judgment  and  discretion  Congress  might  think 
proper.” 

In  fact,  the  honorable  committee  to  whom  the  British 
Board  of  Trade  referred  the  investigation  of  the  points  at 
issue  say  in  their  report : 

“  The  proper  compensation  for  the  losses  occasioned  by  the 
cruisers  in  question,  we  have  to  examine,  but  with  the  mode 
of  distributing  that  among  the  various  claimants,  the  Ameri¬ 
can  Government  is  alone  concerned.” 

Here  is  abundant  proof  that  Congress  is  supreme  and  ex¬ 
clusive  in  its  jurisdiction,  limited  only  by  that  “good  faith ” 
on  which  we  confidently  rely.  As  Burke  once  said :  “  Gov¬ 
ernments  cannot  afford ,  (if  they  would),  in  the  long  run,  to 
do  injustice.”  The  law  of  compensation  is  as  sure  and  fatal 
on  the  elevated  plateaus  of  international  relations  as  in  the 
obscure  and  lowly  dealings  of  human  life. 

Every  lawyer  knows  that  in  making  a  law  brief,  he  cites 


13 


only  the  opinion  of  the  court,  not  the  arguments  of  counsel, 
except  for  reference  to  throw  light  on  the  court’s  reasoning, 
where  that  may  not  he  quite  clear. 

So  in  dealing  with  these  questions.  We  are  to  listen  and 
rely  on  the  Award ,  not  the  arguments,  except  where  there  is 
obscurity.  Fortunately  it  is  all  clear,  exact,  unambiguous. 
The  arbitration  there  express  a  conclusion ,  not  its  reasons. 
What  those  were  they  give  no  sign.  On  pages  7  and  8,  vol. 
4,  Treaty  Papers,  the  Government  agent  says  that  the  pro¬ 
ceedings  were  held  “with  closed  doors,”  and  not  even  he 
knew  how  the  result  was  arrived  at. 

Indeed,  one  of  the  Arbitrators  expressly  declared  that  in 
arriving  at  a  conclusion,  the  arbitrators  were  not  to  be  re¬ 
garded  as  making  an  assesment,  or  confining  themselves  to 
the  schedules,  estimates,  or  tables  of  the  two  governments. 
Cushing’s  Treaty  of  Washingtan,  page  1(17.  The  Forty- 
third  Congress  announced  this  doctrine  in  the  act  of  June 
23,  1874.  Rights  have  become  vested  under  that  doctrine  and 
act .  How  can  this,  or  any  future  Congress  consistently,  justly, 
or  constitutionally  change  it  ? 

The  immediate  distribution  of  this  fund  is  called  for  by 
every  consideration  associated  with  the  history  of  these  dep¬ 
redations,  the  negotiations  preceding  the  payment,  the  prompt 
and  generous  response  of  England,  the  situation  and  needs  of 
the  claimants,  the  record  and  the  honor  of  our  own  Govern¬ 
ment.  Ho  interest  suffered  so  severely  during  the  war  as 
that  of  shipping ;  none  is,  to-day,  so  far  from  recovery ;  none 
was  in  the  main  more  patriotic  or  deserving  ;  and  in  propor¬ 
tion  to  its  means,  none  will  so  rapidly  or  surely  contribute  to 
the  restoration  of  commercial  prosperity  as  this.  It  is  the 
very  marrow  of  the  backbone  of  successful  and  prosperous 
trade.  Hearly  every  dollar  of  this  fund,  now  lying  commer¬ 
cially  idle  in  the  vaults  of  the  Treasury,  will  find  its  way 
back  into  the  depleted  and  needy  channels  of  our  mercantile 
marine.  Delay  is  continued  depression  and  continued  disas¬ 
ter.  Justice  is  often  synonymous  with  and  equivalent  to 
punctuality.  Delay  breeds  distrust,  if  it  does  not  pave  the 


14 


w ay  for  downfall.  So,  we  respectfully  ask  for  that  immediate 
legislation  that  will  provide  for  the  earliest  payment  for 
losses  of  hulls  and  cargoes,  and  war  premiums.  If  there  is 
any  balance  then  left,  it  should,  in  our  judgment,  go  to  those 
who  lost  money  by  the  insurgent  cruisers,  if  such  remain, 
before  those  who  made  money,  who  (at  best  have  but  a  quasi , 
or  secondary  claim)  are  paid. 

The  present  Court  is  allowed  to  decree  judgments  in  favor 
of  insurance  companies  where  they  can  show  their  payments 
for  war  losses  exceeded  their  income  from  war  premiums. 
Ti;ey  get,  therefore,  their  net  loss.  This  is  all  any  other 
claimant  asks  or  gets,  and  no  unjust  discriminations  should 
now  he  made.  The  Court’s  docket  shows  only  a  Few  thou¬ 
sand  dollars  loss  to  all  underwriters.  Comment  is  needless. 

On  this  latter  proposition,  for  the  present,  we  express  no 
preference,  except  an  unqualified  dissent  from  the  proposition 
to  “  cover  it  into  the  Treasury.”  There  are  some  claims  (not 
yet  provided  for)  easily  defined  and  judicially  adjudicated  for 
excessive  personal  suffering  of  prisoners  on  hoard  the  cruisers, 
and  (after  landing  them  in  the  Confederacy)  in  Southern 
prison  stockades. 

The  most  obvious  considerations  of  humanity  entitle  these 
to  some  provision. 

Respectfully  submitted, 

J.  F.  MAMLNT(i, 

Counsel  for  certain  Claimants  under  the  Geneva  Award. 


EXTRACT  FROM  THE  LAWS  OF  THE  STATE  OF 
XEW  YORK. 


Chapter  614. 

An  Act  to  authorize  Marine  Insurance  Companies  to  de¬ 
clare  extra  dividends  in  certain  cases, 

Passed,  May  24th,  1878. 

The  ■people  of  the  State  of  New  York ,  represented  in  Senate 
and  Assembly ,  do  enact  as  follows: 

Section  1.  If  any  Marine  Insurance  Company,  organized 
under  the  laws  of  this  State,  having  paid  a  loss,  shall  receive 
a  sum  derived  from  the  Geneva  Award,  by  way  of  reimburse¬ 
ment  of  that  loss,  it  shall  be  lawful  for  such  company  to 
divide  the  net  amount  so  received,  after  deducting  the  ex¬ 
penses  and  liabilities  relating  hereto,  among  the  persons  or 
parties  who  paid  premiums  and  suffered  by  the  payment  of 
the  original  loss,  or  were  prevented  from  receiving  so  much 
as  they  otherwise  would  have  received  by  occasion  of  the 
loss,  instead  of  dividing  the  same  among  the  more  recent 
•script-holders  or  dealers  with  such  company ;  such  division 
to  be  in  the  form  of  an  extra  dividend,  or  extra  dividends 
upon  the  plan  contemplated  by  the  charter  of  such  company, 
subject  to  all  just  claims  for  debts  and  liabilities  and  pay¬ 
able  to  the  same  persons  or  their  representatives,  and  in  like 
manner  as  the  money  from  which  the  loss  was  originally 
paid,  would  have  been  payable  if  the  loss  had  not  been  borne 
by  the  company  and  the  action  of  the  board  of  directors  or 


16 


trustees,  in  ascertaining  the  amount  and  making  sucli  extra 
dividend  or  dividends,  shall  have  like  force  and  effect  as  their 
action  in  making  and  declaring  dividends  under  the  charter. 

Section  2.  This  act  shall  take  effect  immediately. 

The  following  are  the  objections  to  any  distribution  of  the 
balance  of  the  Geneva  Award,  under  this  act,  viz  : 

1st.  It  includes  all  marine  companies  organized  under 
the  laws  of  Yew  York,  whose  claims  in  the  aggregate  cover 
more  than  one-half  of  the  entire  amount  asked  for  by  all  the 
companies. 

2d.  The  act  .provides  for  the  payment  of  the  u  net  amount  ” 
“  after  deducting  the  expenses  and  liabilities.” 

The  companies  themselves  are  made  the  jurors. to  deter¬ 
mine  these  amounts,  and  the  time  when  they  will  be  paid — • 
without  any  appeal  or  power  to  revise,  audit  or  change  their 
allowances  to  policy  holders. 

3d.  The  only  limitation  positively  imposed  by  this  act,  is 
that  the  amount  is  to  be  paid  to  the  persons  who  were  mem¬ 
bers  of  the  companies  when  the  losses  occurred — and  these 
persons  include'  marine  payers  as  well  as  “  war”  payers.  In 
fine,  there  is  no  certainty  of  time  of  payment,  or  amount ; 
and  by  the  only  affirmative  portion  of  the  law,  a  part  or  all 
the  disbursements  under  it  are  to  go  to  those  who  sustained 
no  “  war  ”  losses,  to  wit :  marine  payers.  So  far  as  the  act 
recognizes  the  payment  to  “  war  ”  payers,  it  admits  their 
right  to  recover.  Why  not  let  them  share  without  the  tor¬ 
tuous,  tedious  and  diminishing  (if  by  “  expenses  and  liabili¬ 
ties”  and  payments  to  marine  payers  it  does  not  extinguish), 
processes  established  by  this  law,  viz:  through  the  Treasuries 
of  forty-three  companies? 

Only  a  few  members  then ,  are  voters  now.  Consequently  mem¬ 
bers  not  entitled  to  the  money  would  vote  it  away  as  they 
saw  fit. 


/ 


■ 


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